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History of Government and Laws, Part 9
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“The Development of the System of Government and Laws
of Pitcairn Island From 1791 to 1971"
Printed in and taken from Laws of Pitcairn, Henderson,
Ducie and Oeno Islands, Rev. Ed., 1971
By Donald McLoughlin, B.A., LL.B.
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The Island Court
That the 1904 Constitution continued for so long can largely be
attributed to the general state of lassitude in relation to their
affairs on the part of the Islanders themselves as well as their
steadily increasing trade with passing vessels in the period after
1920 which took up more and more of their time and energy leaving
less time for the petty quarrels in relation to their governmental
affairs to which they appear to have been so prone towards the close
of the 19th century and in the early years of the 20th century.
One cannot, however, rule out the fact that this system of laws
was more suited to the people themselves and therefore had a better
chance of survival than the top heavy 1893 Constitution.
The application in practice of the 1904 Constitution and Laws was
more than a little unusual particularly in relation to the enforcement
of the laws and regulations and the conduct of proceedings in the
Island Court. The latter had little relation, if any, to those of
any Court of Justice known to more sophisticated societies. The
system does, however, appear to have worked on the whole as a form
of practical, although at times exceedingly rough justice.
The court records for the year 1904 to 1907 were very well kept
by a Welshman named Petch who served as the first Government Secretary
over those years. Thereafter the records deteriorated somewhat in
the hands of his successors but, having regard to their educational
standards are surprisingly good and constitute perhaps the best
overall picture of contemporary life on Pitcairn Island, in that
they portray the people as they really were and not as they preferred
to represent themselves to outside officialdom. They are also indicative
of a general falling off in the standard of court procedures which
at times, appear to have been virtually ignored or supplanted by
the whims of individual Chief Magistrates(50). Many of the matters dealt
with by the Court would not be entertained by a court in any other
jurisdiction as coming within the category of purely domestic upheavals
or too petty to justify court proceedings.
In the period from June 1904 to June 1908, the first four years
under the 1904 Constitution, a total of 43 cases were heard by the
Island Court. Of these 7 were inquiries conducted by the Island
Magistrate into various matters outside the jurisdiction of the
Court, with the result that no findings were recorded and one gathers,
were held solely for the purpose of enabling a public airing of
the matters under inquiry. One was a civil case concerning the ownership
of land. The remaining 35 were criminal cases (an average of less
than 9 of such cases a year). Of these 35 cases 3 involved alleged
breaches of Law 4, which made it an offence to commit adultery or
for a married person to “associate with a person of the opposite
sex in secluded places for the purpose of acting in a manner not
consistent with his or her marriage vows, or for the purpose of
committing carnal offences.“ Two cases involved breaches of
Law 5, which made it an offence for unmarried persons of either
sex to congregate together in such a manner as to cause scandal
or to endanger the morals of the younger members of the community.
Seven cases involved theft, the articles stolen being a newspaper,
coconuts, chickens, a goat and pineapples. Five cases involved breaches
of the Internal Committee's Regulations relating to gathering coconuts
and cutting down a “doo-doo“ tree. The other 7 cases involved
minor breaches of the peace and abusive language. Of the 35 criminal
cases, findings of guilty were returned in 19 cases involving a
total of 38 persons, however, the finding in 1 case was reversed
on appeal to Mr. Simons the Deputy Commissioner of the Western Pacific
at Papeete. The penalties imposed ranged from a caution to a fine
of five pounds, with two cases in which corporal punishment, in
the form of 3 strokes with a cane and 6 strokes with a cane were
inflicted.
During the succeeding period of just under 8 years, namely from
July 1908 to February 1916, a total of 128 criminal cases were heard
by the Court and findings of guilt, involving a total of 163 persons,
were returned in 84 of those cases. The penalties imposed ranged
from a caution to one month's imprisonment, with fines ranging from
2/6 to ten pounds.
It is extremely difficult to assess the composition of these cased
with any exactitude due to the fact that the laws and regulations
under which the offenders were purported to be convicted were not
always specified and in a number of cases, while they were specified,
in fact bore little or no relation to the evidence adduced. In addition,
as commented earlier, the tendency soon developed of dealing with
a complaint that an unmarried woman was with child as coming within
the scope of Law 5 rather than Law 2 with the quaint result that
the complainant instead of recovering maintenance for her child
ended up by herself being fined the sum of five pounds. A number
of offences were also charged which had no foundation in the laws
at all. For instance one person was charged with causing trouble
by clipping a girl's hair at night. The Court duly found the accused
not guilty but left the case open “for any open light.“
In another case a girl was charged with the unknown offence of “Being
in a family way“ and although the Court found her not guilty,
as indeed it had no other alternative, it added the rider to its
finding of “Suspicious Case,“ and, in another case, an
unfortunate charged with the so-called offence of “attempted
suicide by shooting himself“ was duly found guilty of it, the
penalty imposed being that he was prohibited from using firearms.
In another case a child was charged with failing to return a book
to the owner and ordered to return the book. In yet another a person
was charged with committing an unnatural offence with a pig but
the proceedings closed after a desultory attempt at a trial without
any attempt by the Court to reach any conclusions. In another case
a man was duly acquitted of a charge of giving a girl the claps.
None of these “offences“ had any authority in the laws
and were apparently charged without reference to the laws themselves
at all. Apart from these and other similar cases, however, it has
been possible to extract with some degree of accuracy the fact that
30 of the cases involved allegations of theft, 22 involved alleged
breaches of Laws 4 or 5 or a combination of these two laws, 5 involved
allegations of breaches of Law 2 (paternity of illegitimate child)
16 involved allegations of breaches of the peace and 32 involved
allegations of breaches of the Internal Committee's Regulations
including 1 case in which 10 persons were found guilty of using
unlicenced firearms (the first revenue case on Pitcairn Island.
In the light of the information disclosed by the figures in relation
to these cases one can appreciate the apparent validity of the contemporary
comments by Simons' successor that “the Pitcairn people are
going from bad to worse, in health, morals and general civilization“
and the report attributed to Mr. Petch, the First Government Secretary,
that “crime is of frequent occurrence; of law there is almost
none, every man does practically as he sees fit while the idea of
restraint in any form, is abhorrent to them.“(51)
On a detailed inspection of the case records, however, I feel that
the actualities were not as black as they were painted. Although
the population of the Island over this period was only approximately
140 persons(52) and the total number of people convicted over the period
of 8 years was 163, an average of just over 20 persons convicted
per year, the majority of the offences in respect of which those
convictions were recorded were such that they would not be regarded
as offences in a more sophisticated community on the grounds of
triviality or constituting no offence in law. Of the 30 cases of
alleged stealing which came before the Court most of them related
to the taking of coconuts and fruit by children and I can find no
more than a dozen cases in which a prosecution would conceivably
have been brought had they occurred in Fiji for instance. The majority
of the cases were in fact the outcome of petty quarrels, domestic
disputes and childish pranks and of no significance whatsoever.
Even the cases involving moral lapses not normally the subject of
criminal proceedings in other jurisdictions do not, on inspection,
justify any serious conclusions other than that the morals of the
island community left a lot to be desired and that the islanders
had drifted a long way from the highly moral and innocent people
of the pre-Norfolk Island emigration in 1856.
In the next period in respect of which detailed court records are
available for inspection, namely from the 20th of January, 1920,
to the 10th of December, 1934, a total of 167 cases came before
the Court and findings of guilt were returned in 141 of those cases
involving a total of 247 persons, making an average of 17 persons
convicted per year. The composition of these cases was virtually
identical with those for the period from 1908 to 1916, reflecting
a continuation of a similar state of affairs to that which existed
in that period. A detailed examination of the case records, however,
does indicate an even lower standard of court procedures than that
which prevailed in the former period.
In the early years the court proceedings were reasonably well conducted
with only occasional departures from recognized court procedures.
In the succeeding years, however, particularly after the removal
of Mr. Petch from the office of Government Secretary, as an apparent
direct result of conflicts between him and the then Chief Magistrate
as well as with other islanders, the procedures became haphazard
in the extreme. Whilst in the earlier years it was not uncommon
for court proceedings to take the form of a general inquiry, the
Court did at least refrain from returning any finding against any
particular individuals in such cases. In the succeeding years, however,
the practice of holding such inquiries became more general and usually
resulted in a finding of guilt against any persons who as the result
of such inquiry the Court considered guilty of an offence. This
applied even in cases where a formal charge was laid against a particular
individual or individuals. The result was that, in several cases,
although for instance two persons were charged with an offence it
was quite possible for a complainant or a witness called to give
evidence or, in two cases for one of the assessors hearing the case,
to be also found guilty of some offence and punished.
In fact it reached a stage where to have any part in a case before
the Court, whether as a complainant, witness, member of the Court,
or accused, was a somewhat hazardous experience as, regardless of
the role in which a person attended the Court, it was not beyond
the bounds of possibility for him to find himself convicted of some
offence or another. A classic example of this is to be found in
a case heard in 1925 in which a complaint was made by a third party
that a young man had attempted to choke his girl friend in the course
of a quarrel. The informant having laid his complaint before the
Court, the accused was asked to explain the nature of the trouble.
He promptly accused others of causing trouble with him and denied
the allegation of attempting to choke his girl friend. She was then
called and asked if the accused had been fighting with her. After
hearing her account of the matter the Chief Justice then called
on each person whose name emerged from the statements given to the
Court, either as having knowledge of the affair or having been involved
in the dispute. In the final result the Chief Magistrate, without
obtaining the opinion of the assessors as regards each person, proceeded
to impose a fine of ten shillings each on the original accused,
the assaulted girl friend, one of the witnesses and one of the assessors
who, although continuing to sit in that capacity, also gave evidence
in the case. In addition a bystander was arbitrarily fined one pound
for insulting the Court and the Magistrate, without being informed
of any of the details of the alleged insult or being given any opportunity
of defending himself(53).
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Footnotes:
(50) This I consider attributable largely to the virtual complete lack of understanding as to how the laws should have been interpreted and applied.
(51) Maude I, p. 96. Petch does not appear to have been an unbiased witness as his removal from the office of Government Secretary coincided with a long criminal case against him in which he was found guilty and from the records of other cases it is apparent that considerable antipathy had developed between him and the islanders. He Was previously acquitted of another alleged offence against the laws.
(52) Neill, p. 5, the relevant figures over the years were 1901–126 persons; 1914–140 persons; 1920–169 persons; 1932–200 persons; and 1936–209 persons.
(53) In another case in which a man was charged with threatening his wife, a similar type of general inquiry was conducted with the result that both the accused husband and his wife were found guilty of an unspecified offence which one can only assume as being that of disturbing the peace, as also were three other persons named by one or other of the witnesses during the course of the hearing. Each was found guilty by the assessors and duly fined £2 by the Chief Magistrate. In addition another person called upon the Magistrate to act as an assessor in the case was fined £1 for contempt of court although continuing to sit as an assessor and without either having his alleged contempt explained to him or being given an opportunity to defend himself.
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